Tarrant v. Ponte, 84-1392

• Decision Date: 04 January 1985
• Docket Number: No. 84-1392,84-1392
• Citation: 751 F.2d 459
• Parties: John TARRANT, Petitioner, Appellee, v. Joseph PONTE, et al., Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 459

751 F.2d 459

John TARRANT, Petitioner, Appellee, v. Joseph PONTE, et al., Respondents, Appellants.

No. 84-1392.

United States Court of Appeals, First Circuit.

Argued Sept. 14, 1984.

Decided Jan. 4, 1985.

Linda G. Katz, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, and Barbara A.H. Smith, Asst. Attys. Gen., Boston, Mass., were on brief, for respondents, appellants.

Carol Donovan, Boston, Mass., with whom Robert Sheketoff, and Zalkind & Sheketoff, Boston, Mass., were on brief, for petitioner, appellee.

Before CAMPBELL, Chief Judge, COWEN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This is an appeal regarding habeas corpus relief granted in the United States District Court for the District of Massachusetts. Petitioner was convicted and sentenced in the Massachusetts Superior Court for, inter alia, two counts of armed robbery. The district court, 586 F.Supp 1369, set aside the conviction and sentence on one of these counts as violative of the double jeopardy clause of the fifth amendment, and the Commonwealth now appeals from that order.

The facts are as follows. On October 19, 1976, petitioner John Tarrant accosted Judith Van Sprewenburg as she was leaving the apartment house where she lived to go to work. He forced her, at knifepoint, to reenter the ground floor foyer of the building and there demanded money. She opened her purse and gave him approximately $13. Petitioner then, with knife still in hand, demanded to be taken to her apartment, which was on the second floor. Ms. Van Sprewenburg complied, unlocking the inner foyer door and leading petitioner upstairs to her apartment. Once inside, petitioner looked around the apartment, locked Ms. Van Sprewenburg in her bathroom, and took various personal effects before leaving.

Petitioner was arrested and was indicted by a Massachusetts grand jury for four different offenses based on the events of October 19. The indictments charged him with armed robbery of the $13, armed robbery of the personal effects taken from the apartment, armed assault in a dwelling, and unlawful confinement of another. Prior to trial, petitioner's counsel filed a motion to dismiss one of the armed robbery indictments on the ground that the armed robbery indictments were duplicitous. The Suffolk Superior Court denied the motion and a jury found petitioner guilty on all four indictments.

On each of the armed robbery indictments and on the indictment charging armed assault in a dwelling petitioner was sentenced to ten to fifteen years' imprisonment, to be served concurrently. On the unlawful confinement conviction, petitioner was sentenced to five to ten years, to be served concurrently with the other three sentences. ¹ Petitioner's convictions were affirmed by the Massachusetts Appeals Court, Commonwealth v. Tarrant (I), 14 Mass.App.Ct. 1020, 442 N.E.2d 31 (1982), and the Massachusetts Supreme Judicial Court denied further appellate review, Commonwealth v. Tarrant (I), 388 Mass. 1102 (1983). ²

Petitioner sought a writ of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254 alleging, among other things, that he was convicted twice for the same offense in violation of the fifth and fourteenth amendments. He contended that his forcible taking of the money in the foyer, and his subsequent stealing of other property in the victim's second floor apartment, constituted but one crime of armed robbery, and that his conviction on two indictments of armed robbery therefore constituted double punishment. ³ The case was referred to a United States Magistrate who recommended that the petition be denied in its entirety. Petitioner filed timely objections to the report and recommendations.

After a non-evidentiary hearing, the United States District Court for the District of Massachusetts ordered that the conviction and sentence for armed robbery of the personal effects taken from the apartment be vacated but denied all other requested relief. The state custodian filed a timely notice of appeal from so much of the order as allowed the petition in part. It also sought and was granted a stay pending appeal of the order vacating the conviction and sentence. ⁴

The central issue in this appeal is whether the district court had the authority to reject the state court's interpretation of state law and to decide that the incidents of October 19 constituted one offense of armed robbery for double jeopardy purposes. ⁵

The Massachusetts Appeals Court held that the petitioner's convictions on the armed robbery indictments were not duplicitous. In so holding, the court rejected petitioner's argument that the Supreme Judicial Court's interpretation of the armed robbery statute, Mass.Gen.Laws ch. 265 Sec. 17, ⁶ in Commonwealth v. Levia, 385 Mass. 345, 431 N.E.2d 928 (1982), compelled the conclusion that the dual convictions had subjected petitioner to double punishment for the same offense.

In Levia, the Supreme Judicial Court held that a judge had properly imposed consecutive sentences on a defendant convicted of two indictments of armed robbery because, by placing two employees of a store in fear and taking from each victim in the same episode money belonging to the store, he had committed two offenses of armed robbery. The court stated that "[i]n light of the emphasis that the General Court and this court have placed on the assault element of the crime of robbery, we conclude that the 'offense' is against the person assaulted, and not against the entity that owns or possesses the property taken." Id. at 351, 431 N.E.2d at 931. Petitioner argues that the converse of the Levia court's reasoning compels the conclusion that he may be punished only for one armed robbery because there was only one victim assaulted, although two thefts occurred at different locations.

The Massachusetts Appeals Court rejected this reasoning, concluding "[t]here is nothing in Commonwealth v. Levia ... which requires the conclusion that the defendant's acts, first in the foyer and then in the victim's apartment, were discrete parts of a single robbery." Tarrant (I), 14 Mass.App. at 1021, 442 N.E.2d at 33. The Appeals Court concluded that

Although the taking of the victim's money and property happened during a continuous period, the offenses occurred in two different places and under different circumstances. While no one but the defendant and the victim were in the foyer at the time of the robbery, the foyer, unlike the victim's apartment, was accessible to the public. The victim testified that she was afraid while she was in the foyer and that she became more frightened in her apartment. "The essence of robbery is the exertion of force, actual or constructive, against another in other to take personal property ... from the protection which the person of that other affords." Commonwealth v. Weiner, 255 Mass. 506, 509, 152 N.E. 359 (1926). Commonwealth v. Levia, 385 Mass. at 348, 431 N.E.2d 928. These two offenses are not "so closely related in fact as to constitute in substance but a single crime." Commonwealth v. St. Pierre, 377 Mass. 650, 662-663, 387 N.E.2d 1135 (1979).

14 Mass.App. at 1021, 442 N.E.2d at 33.

The district court, in evaluating petitioner's habeas challenge to the state court's conclusion, acknowledged that "[w]hether a particular course of conduct involves one or more distinct offenses under a statute is a matter of legislative choice" and that "[a] state court's interpretation of a state's criminal statute is binding on a federal court." It held, however, that it could not agree with the state court's ruling and further, that it was not bound by the decision of the Massachusetts Appeals Court in this case. It explained,

[the appeals court] did not purport to decide whether the state legislature intended that activities such as petitioner's should be punished as two armed robberies under the statute. Rather, it ruled simply that the petitioner had committed two armed robberies under the statute as it had been interpreted by the Supreme Judicial Court. This Court may review such a ruling. See Brown v. Ohio, 432 U.S. at 169 & n. 8 [97 S.Ct. 2221 at 2227 & n. 8, 53 L.Ed.2d 187 (1977) ].

Petitioner reads the district court to mean that while it could not second guess the state legislature or, it seems, the state courts, in defining an "offense" or "unit of prosecution," it could oversee the application of the definition of the offense to the facts of a particular case. He thus concludes that the federal court rightfully intervened in the present action because "[t]he Massachusetts Appeals Court, in affirming petitioner's multiple armed robbery convictions, misapplied the clear rule established by the state statute as interpreted in the state's case law." (Emphasis added.)

Petitioner's distinction between a state court's interpretation of a state law and its application of that law is, in our view, unworkable. All would agree in this case that the legislature could constitutionally have explicitly defined the "unit of prosecution" for armed robbery so that petitioner's actions would constitute two or more offenses. See Bell v. United States, 349 U.S. 81, 82-83, 75 S.Ct. 620, 621-22, 99 L.Ed. 905 (1955) ("Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so?"); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952); In re Snow, 120 U.S. 274, 282-84, 7 S.Ct. 556, 559-60, 30 L.Ed. 658 (1887). If the legislature foresaw each factual situation that might arise and provided for it in the statute, it could not be accused of usurping a court's function of "applying" the law to the circumstances of the case; it simply would be more narrowly and specifically defining the "unit of prosecution." By...